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NSA Surveillance: What We Should All Agree On
I’ve received several requests to respond to Tom Meyer’s very thoughtful post about how national security hawks should respond to criticisms of the NSA surveillance program. The piece is mostly about political argument and the art of rhetoric — I’m not quite sure from the post what Tom himself thinks is the best policy — so I’ll have to respond broadly.
What makes this issue difficult is that the war is covert, against a network of non-state fighters who disguise their communications and movements as innocent, but have great destructive power aimed at civilians. We are pursuing the wartime goal of stopping enemy attacks before they happen.
Perhaps we can all agree on three facts.
First, we are trying to find a needle in a haystack — those few messages buried in the mass of innocent communications that will lead us to a terrorist conspiracy.
Second, the criminal law approach — a warrant first, a search second — does not work in this situation (as we discovered on 9/11), because we would not have probable cause to search an individual target, whose identity we probably do not know and who has not, as of yet, done anything criminal.
Third, the magnitude of destruction from a terrorist attack is far greater than a criminal enterprise.
With those circumstances in mind, I do not see what practical, effective alternative there is to some kind of broad electronic surveillance program. One can argue about the details, in terms of how many NSA employees should run it, how much congressional and judicial oversight there should be, etc. But if we are going to continue to prevent terrorist attacks on the U.S. homeland, the U.S. will need to be able to sort through the mass of innocent communications to find signals that will allow it to detect the attack before it happens.
If one accepts the three stipulations above, I simply don’t see an effective alternative.
Published in General
It did not remain in effect after WWI. There was no draft from 1918 – 1940. It remained in effect through WWII, Korea, and Vietnam and has not been in existence since then.
Conscription is not some extra-constitutional 19th century innovation either. The Continental Congress requested states draft men for the Revolution and prior to that the colonies required service in the militia.
First, you be more intelligently selective about what data you collect. If John Doe is communing with al-Qaeda people, get a warrant to monitor his communications and identify his associates. If monitoring John Doe’s communications shows that Mary Roe is involved in the conspiracy, get a warrant for her and/or her associates. Rinse and repeat.
You don’t need to suck down everybody’s data to find the data you want. Collect less data in ways that lead you to the source of the data.
Well, if the Continental Congress was doing it, it would be pre-constitutional, not extra-constitutional. And asking states to draft their militia men into the continental army is different from the federal government drafting men into their permanent standing army.
What you keep missing (intentionally or unintentionally, I cannot say) is that once the government gets these powers, it may put them down, but it claims them for all time. So now that the government has claimed for itself the power of conscription (and that’s just one example), its a matter of when and not if it is used again.
So you believe it is more intelligent to concern yourself only about calls John Doe makes in the future? No need to worry about who he may have been in contact with last month or a year ago? You don’t think terror cells have procedures in place to deal with a member being captured, killed, or compromised?
What you keep missing (either intentionally or not) is that some of these powers are legitimate powers of government. The Constitution explicitly gives the Congress the power to raise an army. Conscription was a well recognized means of doing so at the time that power was granted.
Others, such as the Japanese internment are now recognized as illegitimate and have never been repeated.
Considering this sort of prosecutorial abuse, I don’t think we need to give any bigger sticks to lunatic psycho prosecutors. Phone companies are going to have phone records going back several months. We can still get what we need once we get a warrant.
This is a military tool not a prosecutorial tool.
Regardless, prosecutors can get the same information on an individual without a warrant, NSA program or not.
How many months of records do the phone companies maintain? Are they required to? What if they fail to do so? What if they maintain 3 months and John Doe’s cell has not been active for 6 months?
To this administration, every tool is a tool to be used to suppress political opponents. If Obama were interested in using this sort of tool to fight terrorism, the Ft. Hood shooting wouldn’t have happened. We had the goods on Hassan months before the shooting.
If you haven’t got the guts to shoot a burglar, keeping guns around the house is a bad idea. If you haven’t got the guts to arrest terrorists on American soil, warrantless domestic surveillance programs are a bad idea.
Except you have absolutely no evidence this program has been used to suppress political opposition. There are any number of other military capabilities that theoretically could be used to suppress political opposition but there is no evidence Obama has done so either.
Whether any investigation of Nidal or any other single individual was handled effectively is irrelevant to the constitutionality of the program in question.
Is your argument this program is a bad idea or unconstitutional? You can disagree with the reasons a person has for keeping a gun in their house but that does not mean their doing so is not protected by the Constitution.
If Obama hasn’t used NSA data against opponents, it is solely because the IRS has been able to get the job done. And we don’t know that it hasn’t been used against opponents. Blackmail victims are highly motivated to cover blackmail up.
OK, never mind. When the response to a request for evidence is to claim sinister forces are hiding it, there is no use continuing.
In recent interviews with both the former and current directors of the NSA, they take noticeable pride in making the claim that terrorist actions have not occurred since September 11, 2001 almost as though the Fort Hood shooting and the Boston Marathon bombing hadn’t happened at all. Of course, if these are only characterized as workplace violence and unaffiliated jihadist, just disgruntled Muslims acting out – respectively, then I suppose these gentlemen are technically correct.
(Continued from #40)
Any political blackmail operation using NSA data would be highly secret, and the NSA has a record of being very good at keeping secrets, Snowden notwithstanding. Throw in a press corps that wouldn’t report the story if they had video of Obama personally ordering Adm. Rogers to dig up dirt on Republicans, and the fact that we, the people “have no evidence” of political thuggery by the NSA means little.
Regarding the Hassan case, if we’re not using a program for it’s advertised purpose, it begs the question of what purpose we are using it for. If we’re not going to use it to stop terrorist attacks (and history shows we aren’t), it should be shut down.
And when the response to reasonable concerns about the misuse of a powerful surveillance program is “I didn’t do it, nobody saw me do it, there’s no way you can prove anything.” It reminds me of this line.
The NSA has a history of keeping political blackmail secret? Do tell.
The soldiers, sailors, airmen, and Marines who work at the NSA keep classified information secret. There is no reason to believe this translates into a willingness to carry out illegal orders or keep the execution of illegal acts secret.
If you have evidence the NSA has been party to domestic political blackmail, present it. If not, paranoid conspiracy theories violate the CoC.
The NSA program is not designed to detect or identify radical individuals who commit acts of terror. It is designed to identify terrorist networks. There is no indication Hassan was a member of any such network.
Let me know when you have a reasonable concern.
That’s the things about secrecy. We don’t have evidence because we’re not allowed to know.
Sure, there are secret courts interpenetrating secret law and issuing secret rulings. In theory, that’s a check. But since it’s all done in secret, and we’re not allowed to see, there’s no check. The fact that those secret courts are a rubber stamp is a problem.
Secret courts issuing secret rulings on secret laws are an anathema to a constitutional republic.
Whether the programs were designed to catch individuals or networks, somebody spotted Hasan’s emails to al-Awlaki and passed them to the FBI.
From Wikipedia:
And yet nothing was done. We had at least enough for Conduct Unbecoming, a Bad Conduct Discharge, and no Ft. Hood shooting.
It wouldn’t require that the NSA as a whole be corrupted, just a few people with the proper access. Of course we all know the NSA never gives access to classified data to anyone who can’t be trusted. Or do they? I seem to remember a guy named Snow something-or-other. Snowden, that’s it! Somebody made a really good call on his security checks, didn’t they.
Fred, that is the cop out of every conspiracy theorist on Earth…’ we don’t have actual evidence because it is secret!’
The law is not a secret, the court is not secret. All courts issue sime orders in secret. It is not anathema to anything except some utopian view of the world.
Sounds like the NSA did its job. Unless you believe the NSA should not have been monitoring al-Awlaki’s email. (For the record, that is a completely different NSA program than the one we are discussing.). Why are you faulting the NSA for an FBI or Army CID failure?
Hassan’s communications with Awlaki. Awlaki doesn’t count as being part of a terrorist network? The Tsarneov brothers and their Chechen ties aren’t considered to be part of a terrorist network but American citizens, with no contact with any people/groups like the examples cited have their met data “hoovered up” on what basis exactly?
No, his one on one communication with al-Awlaki does not constitute a network. Hassan, to the best of our knowledge operated independently. He was not part of a cell or a network. He was not receiving funding, training, resources, or information from others.
As far as I know the same can be said for the Tsarneov brothers. Their data was collected just like everyone else but as either no one queried the database for their contacts or there were no significant links found to anyone else.
How many do you suppose would need to be corrupted? How many officers and NCO’s do you see involved in this conspiracy?
I’ll concede NSA got the emails. My criticism is not of the NSA’s competence at reading people’s email. My criticism is that if we won’t do anything worthwhile with the information we collect, then collecting the information is either:
A single instance in which intelligence was not acted upon is not a sufficient reason to forego collecting intelligence.
I have no interest in engaging your paranoia regarding what Obama could possibly do. When there is evidence he actually did it, get back to me.
I’ve given you more examples of where terrorist SIGINT was deliberately ignored than you’ve given me of times when the system worked as advertised. If anyone could show me a single instance where this sort of intelligence was acted on, I’d gripe a lot less. But I guess that’s a secret, too.
I repeat, what is the point of collecting information no one in authority is willing to use?
This sort of intelligence? Do you mean any kind of SIGINT? E-mail intercepts? Phone call intercpts? Traffic analysis? Link diagrams?
This sort of intelligence is used every day by military, diplomatic, and political leaders. What exactly is it you want to know?
You haven’t offered any example of any kind of SIGINT being used to stop any terror attack in the United States. At this point, I would settle for just about any SIGINT success story where one end of the “conversation” was in the United States and a terror attack in the US was stopped as a result. I don’t think you can name even one, and if you can, it almost certainly happened during the Bush Administration. Because Obama doesn’t want to hear about terrorism. Joe Biden said “GM is alive and Bin Laden is dead”, and Obama considers the whole terrorism thing settled. He called the Ft. Hood shooting “workplace violence”. He left our ambassador to Libya to die.